Features of taxation of personnel training expenses

General provisions

The Labor Code of the Russian Federation stipulates that only the employer can decide whether the organization will pay for the professional training of a specialist. The employer is also given the right to set the rules and training regime. Typically, employee development is a manager's right, not an obligation, but there are a few exceptions. Specialists who are required to improve their qualifications include :

• workers of medical institutions;
• civilian employees;
• notaries and their assistants;
• auditors.

When training is paid for by the employer at the expense of the organization, an additional condition should be included in the employee’s employment contract obliging him to work at the enterprise for a certain period after completing his studies. In order for such a provision to comply with the law, the employment agreement, amendment to it, or a separate contract must contain a clause stating the employer’s agreement to pay all study costs. The procedure for sending a specialist for advanced training consists of the following stages:

1. A plan of necessary classes is drawn up.
2. An educational institution is selected where the person will study.
3. An apprenticeship contract or additional agreement is concluded, reflecting information about the conditions of training and the subsequent period of work. The parties sign the document and receive a copy.
4. An order is issued to send the employee to study. The employee confirms familiarization with the document with a personal signature.

The employee must complete training within the prescribed period. If for some reason he does not want to do this, then the employer has the right to demand compensation for expenses incurred to pay for advanced training.

Expenses for employee training and personal income tax

Expenses of enterprises on employee training are not subject to personal income tax. It does not matter whether the company pays the price for training directly to the educational institution or compensates the costs of training to the employee himself, as well as who initiated the training - the employee or his management. Also, personal income tax is not withheld from the costs of educational literature and materials, examination fees.

However, all of the above is irrelevant for freelancers or job seekers with whom employment contracts have not yet been concluded.

Contract or agreement

To protect its interests when training an employee at the expense of the organization’s funds, the employer has the right to enter into an apprenticeship contract or training agreement with him.
This document is drawn up and considered separately from the tripartite agreement with the institution providing educational services. The parties must sign it before the employee is officially enrolled in training. In addition, it is permissible to include the necessary conditions in the employee’s existing employment contract. Documenting the agreements between the employer and the specialist guarantees that the parties fulfill all their obligations. It will also allow the manager to return material resources if the employee violates the terms of the agreement. A refund of the amount spent is possible:

1. When concluding a student agreement, if an employee, after completing his studies, does not fulfill his obligations without good reason, including not working.
2. When drawing up a training agreement, when an employee submits an application for dismissal without good reason before the expiration of the work period.

Before preparing documents for advanced training, the employer needs to decide what type of contract will most accurately reflect the relationship between the parties. Subsequently, if the employee does not fulfill the terms of the agreement, the employer will be able to correctly formulate its claims against him.

Are employee training costs subject to insurance premiums?

Expenses for employee training (this includes training, retraining, and completion of basic and additional educational programs) are also not subject to insurance contributions. The key requirement for the main or additional programs in which an employee is trained is their compliance with federal requirements and standards in the field of education.

If employee training (in any form) is initiated by the employer to improve the quality and efficiency of work at the enterprise, then, according to statements of the Ministry of Health and Social Development of the Russian Federation (see Letters dated August 5, 2010 No. 2519-19, dated August 6, 2010 No. 2538-19), insurance premiums cannot be collected from educational expenses - this would violate Art. 9 of the Law on Insurance Contributions.

Compensation to employees for expenses on advanced training, professional training and retraining are also non-taxable payments (see paragraph “e”, paragraph 2, part 1, article 9 of the Law on Insurance Contributions). All types of guarantees and compensation that employees who have completed training in these forms can claim are recorded in Chapter. 23 Labor Code of the Russian Federation. And Federal Law No. 125-FZ “On compulsory social insurance against accidents at work and occupational diseases” (clause 2, clause 1, article 20.2) directly states that any expenses of companies for education, training, advanced training and retraining of employees are not subject to contributions to insurance funds.

Employer's rights and obligations

It is important for the employer to understand in which cases he is obliged to train specialists and in which he is not. This determines whether he will be able to receive compensation for the costs incurred.

If advanced training is carried out at the initiative of the manager, then under certain conditions the employer has the right to recover money from the employee. This situation is explained by the fact that the employer himself makes the decision to send workers for retraining if the legislation does not provide for their periodic vocational training.

If additional studies are carried out in connection with the provisions of regulatory legal acts, then it is impossible to receive compensation for the funds spent. In this case, employees must undergo advanced training only at the expense of the employer, and therefore, even if a specialist is dismissed immediately after completion of training, expenses cannot be recovered from him.

The employer can use various methods to improve the level of staff knowledge that do not require a license to conduct educational work. For example, he has the right to introduce mentoring at the enterprise and organize trainings. But for such training it is impossible to draw up a student agreement, that is, if an employee violates oral agreements regarding additional studies, it will not be possible to recover costs from him.

Income tax

Expenses for training, professional training and retraining of employees of a taxpayer organization are included in other expenses associated with production and sales, based on paragraphs. 23 clause 1 art. 264 Tax Code of the Russian Federation.

In this case, it is necessary to comply with two conditions provided for in paragraph 3 of Art. 264 Tax Code of the Russian Federation. Firstly, employees must be trained on the basis of an agreement with Russian educational institutions that have state accreditation and license.

Secondly, only specialists who have entered into an employment contract with the organization can study. A special agreement is also possible, according to which the student, no later than three months after completing the training paid for by the company, is obliged to conclude an employment contract with it and work for at least one year.

What if the employment contract between the specified individual and the taxpayer was terminated before the expiration of one year from the date of its commencement? In this case, the employer is obliged to include in non-operating income of the reporting (tax) period in which this employment contract terminated, the amount of tuition, training or retraining of the relevant employee, taken into account earlier when calculating the tax base (clause 23, clause 1, article 264 Tax Code of the Russian Federation).

...the costs of training and retraining of personnel are taken into account, even if the employee was expelled for poor academic performance...

If three months have passed and the employment contract has not been concluded, then the company must also include tuition fees in non-operating income of the reporting (tax) period in which the term for concluding this contract expired.

This is stated in the letter of the Federal Tax Service of Russia dated April 11, 2011. No. KE-4–3/ [email protected] , in letters from the Ministry of Finance of Russia dated September 8. 2 0 0 9 No. 03–03–06/1/575, dated 09/10/2009 No. 03–04–06–02/67.

Quite a lot of controversial issues are associated with training during the probationary period. For example, are the costs of paying a scholarship to an applicant hired after training taken into account? Or even more interesting: are such expenses taken into account if the applicant has not passed the probationary period?

The recommendations of the Russian Ministry of Finance in this regard are very ambiguous. The letter dated 04/17/2009 No. 03–03–06/1/257 states that a scholarship for an applicant hired after graduation cannot be taken into account as part of other expenses (for income tax purposes).

However, according to an earlier letter of the Ministry of Finance of Russia dated May 7, 2008 No. 03–04–06–01/123, if an applicant is hired after training, then the costs of training and scholarship payments are taken into account in other costs associated with production and sales. If the applicant has not passed the probationary period, then the scholarship cannot be included in expenses for tax purposes (letters of the Ministry of Finance of Russia dated April 17, 2009 No. 03–03– 06/1/257, dated May 7, 2008 No. 03–04– 06–01/123).

Types of training

The classification of employee training is presented in Art. 10, 73, 76 of Federal Law No. 273-FZ. It includes:

• preparation;
• retraining;
• training.

The amount of compensation payments and the guarantees provided to the specialist depend on the type of study. Training can take place without interruption from the production process. If this is not possible, then the employer is obliged to maintain the employee’s average salary and position. In cases where the educational institution is located in another locality, the company pays the employee’s travel expenses. The training specialist is provided with guarantees established by law:

• payment of student leave;
• compensation for travel expenses to the place of study;
• maintaining average wages.

All transactions performed in the process of registration and payment for training must be confirmed by primary documents. In addition, you must have proof of receipt of the service from the educational institution. For this purpose, a properly executed act with full details of both organizations and personal signatures of their representatives is suitable. Documents on the employees’ education, for example, a certificate or diploma, can also confirm the receipt of the service.

Work for studying

Training an employee at the expense of the enterprise is an investment by the employer, since he plans to get a good specialist who will perform job duties at a higher level.
But some employees, having completed advanced training courses or received special education, decide to leave the organization. In this case, the employer loses not only the employee, but also the money invested in his training. It is impossible to oblige a specialist to work off expenses incurred by the enterprise on the basis of an order to send him to study. In addition, in accordance with Articles 196 and 199 of the Labor Code of the Russian Federation, the employer is obliged to list the conditions under which the employee will study in one of the following documents:

• training agreement;
• collective agreement;
• additional agreement.

In order to prevent unreasonable waste of material resources in a document establishing the responsibilities of the parties in the matter of an official’s studies, the employer has the right to establish a period of work for training or the amount of compensation when dismissing an employee before the end of this period. It must also contain the following information:

• specialty or area of ​​study;
• training period;
• cost of educational institution services;
• the employee’s obligation to work at the enterprise for a certain period;
• compensation for the employer's expenses when dismissing an employee for a reason that is not considered valid.

The working period depends on the agreement between the head of the organization and the employee going to study, and is set on an individual basis. It can last from several months to several years.

Typically, when determining it, the following grounds are taken into account:

• cost of education;
• relevance and usefulness of the acquired knowledge for the production process;
• duration of the study period.

All terms should be fixed in the agreement concluded between the parties. This measure will resolve a labor dispute over the length of working hours.

Features of employee compensation for training expenses

An employer, sending an employee for training and paying all related expenses, wants to be sure that his costs will be repaid “triple.” But it also happens that an employee who has improved his qualifications leaves his sponsor after a short period of time for one reason or another. It is logical that then the employer wants to reimburse his costs, because the employee has not yet had time to “work off” them. In such a case, it is reasonable to agree in advance with the employee on the procedure and conditions for payment of compensation.

What can be provided for in such an agreement and what cannot?

From the contents of Art. 249 of the Labor Code of the Russian Federation states that the employer’s right to recover from the employee the costs of his training arises in the presence of the following mandatory conditions:

1) the employee is sent for training by the employer;

2) the training was carried out at the expense of the employer;

3) the employee quit his job before the expiration of the period agreed upon by the parties;

4) the reason for dismissal is not valid;

5) the condition on the employer’s obligation to pay for training, and the employee’s obligation to work for a certain period after training, is provided for in the employment contract or training agreement.

Thus, the employee and the employer have the right in the agreement, incl. in the employment contract, student contract, additional agreement, determine the period during which the employee undertakes to work after training. At the same time, I would like to draw attention to a number of aspects:

1. The parties have the right to independently determine in which cases upon dismissal there is no need to compensate for tuition fees.

The law does not define what specific reasons for dismissal without compensation of costs may be valid. Whether the reason is valid is decided in each case, taking into account the specific circumstances (Letter of the Ministry of Labor of Russia dated October 18, 2017 N 14-2/B-935).

Examples of “disrespectful” reasons for dismissal can be found in judicial practice:

— voluntary dismissal due to the employee’s retirement (Appeal ruling of the Moscow City Court dated August 30, 2017 in case No. 33-34566/2017);

- in connection with a change in the family situation and moving to another area (Appeal ruling of the Vologda Regional Court dated August 23, 2013 No. 33-3829/2013);

- by agreement of the parties (Appeal ruling of the Moscow City Court dated 08.08.2016 in case No. 33-29369/2016);

- dismissal in connection with military service, if the parties agree that after service the employee undertakes to work out the period established by the parties (Determination of the St. Petersburg City Court dated August 12, 2014 N 33-12389/2014).

At the same time, for good reasons within the meaning of Art. 249 of the Labor Code of the Russian Federation can include enrollment in an educational organization; retirement; relocation of a spouse to another area for work (service); illness of the employee himself or his close relatives (Appeal ruling of the Moscow Regional Court dated March 2, 2015 in case No. 33-4530/2015).

At the same time, the employee and the employer can independently establish a list of valid (or, conversely, disrespectful) reasons for dismissal in the context of the need to pay the employer’s expenses for employee training (Letter of the Ministry of Labor of Russia dated October 18, 2017 N 14-2/B-935). For example:

The employee undertakes to reimburse training costs in accordance with Art. 249 of the Labor Code of the Russian Federation, in the event of early termination of the Employment contract at the initiative of the employee or his early dismissal on the grounds provided for in paragraphs 3, 5 - 11 of Art. 81 Labor Code of the Russian Federation.

2. The employer does not have the right to include in the employment contract a provision for the employee to reimburse training costs, regardless of the period of dismissal.

The law does not establish restrictions on the length of the period that the parties can establish in the contract during which the employee undertakes to work at the enterprise. However, the condition that establishes the obligation to pay compensation regardless of the period of dismissal is contrary to the law, since then the employee has an obligation to reimburse expenses in any case, regardless of working a certain period of time (Letter of Rostrud dated April 13, 2012 N 549-6-1) .

3. The provision for the employee to reimburse the employer for travel expenses in connection with training is contrary to the law.

The employer may claim reimbursement of his expenses for tuition fees, stipends, purchase of educational materials, etc. At the same time, the employer does not have the right to demand reimbursement of his expenses for travel expenses (including reimbursement of the cost of travel to the place of study, daily allowance and cost of living ) and payment of average wages, even if the condition for the employee to reimburse the specified amounts is included in the student agreement (Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 07/02/2018 N 69-KG18-7, Appeal determination of the Moscow City Court dated 09/04/2013 to case No. 11-25893/2013).

Also, upon dismissal, the employee is not obliged to reimburse the employer for training costs, which the employer, in accordance with paragraph. 4 tbsp. 196 of the Labor Code of the Russian Federation is obliged to carry out (Appeal ruling of the Tomsk Regional Court dated 02/07/2014 in case No. 33-397/2014).

4. The provision for disproportionate reimbursement of expenses, although beneficial to the employer, may be considered illegal.

Potentially, based on Article 249 of the Labor Code of the Russian Federation (“...unless otherwise provided by the employment contract or training agreement”), the agreement could stipulate that before working a certain period of time the employee reimburses expenses in full, or indicate the formula by which the amount is calculated reimbursement of employer costs, for example:

a) the amount that the employee must reimburse the employer = the amount spent on training the employee (apprenticeship) / the number of months that he must work under the apprenticeship contract * the number of months he actually did not work after training. (Appeal ruling of the Moscow City Court dated June 6, 2017 in case No. 33-13554/2017)

b) costs associated with training in the following order: during the period of training, 100% of training costs are reimbursed; during the first year after graduation, 100% of training costs; during the second year after graduation, 50% of training costs (Determination of the Moscow City Court dated 02/03/2017 N 4g-1068/2017)

However, there is a risk that the courts will recognize the condition of disproportionate reimbursement of expenses as illegal (for example, the ruling of the Supreme Court of the Russian Federation dated September 28, 2012 N 56-KG12-7).

5. The prohibition on dismissing an employee until he has worked for a certain period of time is contrary to current legislation.

According to Article 37 of the Constitution of the Russian Federation, labor is free. Everyone has the right to freely use their ability to work, choose their type of activity and profession. Forced labor is prohibited.

Part 2 of Article 9 of the Labor Code of the Russian Federation determines that employment contracts cannot contain conditions that limit the rights or reduce the level of guarantees of employees in comparison with those established by labor legislation and other legal acts.

Obviously, the provision that establishes a ban on quitting within a certain period does not comply with the law and should not be included in the agreement with the employee.

Thus, we can conclude that the contractual freedom of the parties when concluding an agreement on compensation by an employee for the costs of his training is significantly limited. Obviously, this is due to the peculiarities of the regulation of labor relations, which takes into account the need to protect the employee of their “weaker” subject.

However, concluding such an agreement may be beneficial to the employer, since it allows the employer to resolve a number of issues that are not detailed in the legislation, and thereby increase the chances of a successful (for him) resolution of a possible dispute with the employee.

Collection of funds from an employee

Recovery from an employee of expenses for educational services previously received by him is possible only if he terminates the employment contract without a valid reason. This rule is established in Articles 207 and 249 of the Labor Code of the Russian Federation. But the legal acts do not specify the reasons that can be considered valid, and therefore such nuances are determined by the practice of the judiciary. Valid reasons for termination of cooperation are:

• reduction of staff or number of employees;
• the employee cannot continue to perform his job duties due to health reasons, as evidenced by a medical certificate, and the employer is not able to offer him a suitable place of work;
• conscription of a specialist for compulsory military service.

Unexcusable reasons include the employee’s guilty actions (various violations of labor discipline, for example, absenteeism), as well as his own desire.